Sheldon v. Wood — 14 How. Pr. 18

Majority

p. 18

SUPERIOR COURT.

Henry Sheldon and others agt. Fernando Wood.

Headnote

Where a case, upon a report of referees, was made before the decision in 3 ATer nan, 341, which did not conform to that decision, held, that it might be. made to conform to that rule after the determination of the general term on appeal. This court hold, that they have the power, under § 174 of the Code, to allow ■exceptions to the report of referees, &c.Jcfo be filed nunc pro tunc, after the ten days fixed by the court.

New- York Special Term,

March, 1857.

On a trial before referees, the report was against the defendant. The referees made a special finding of facts, and of their conclusions of law. Thereupon, by agreement of the attorneys, a case was made, setting forth in detail all the evidence before the referees, with a stipulation that either party might turn the same into a bill of exceptions. The defendant appealed to the general term, and when the case came on to be argued there, it was .objected that there were no exceptions to the finding. '

John W. Edmonds, for defendant,

On an affidavit setting forth these facts, and that the case was made before the decision of the court of appeals in 3 Kerm

p. 19

an, 341, was known to the profession, now moved for leave to make a case .conformable to the ruling of the court of appeals, and for leave now to file exceptions to the finding.

Wm. Curtis Noyes, for plaintiffs,

Read an affidavit, that judgment on the report of the referees was entered 8th March, 1856, and notice thereof served on defendant on 13th March, 1856.

said it was not necessary now to make the case to conform to that decision; that could he done as well after the determination of the general term on the appeal, if it should then appear that the case as argued there, was not in conformity to that rule.

As to the leave to file exceptions, he said he had had occasion already to rule, under § 174 of the Code, that the court have the power to allow them to be filed nunc pro tunc.

Under § 405 of the Code, the time to take any proceeding may be enlarged by a judge at chambers.

But under § 174 the court may allow any act to be done after the time limited by the act, and may, at any time within a year after notice thereof, relieve a party from any proceeding taken against him through mistake, inadvertence, surprise, or excusable neglect, and supply any omission in any pleading, &c.

He had. held, after consultation with the other judges, that this provision allowed exceptions to be filed after the ten days fixed by the court.

Motion granted, and the following order entered :—

[Henry Sheldon and others agt. Fernando Wood.] On filing affidavit and order to show cause, and on hearing Mr. Edmonds for defendant and Mr. Noyes for plaintiffs, ordered—That the defendant have leave to file exceptions to the finding of the referees in this action now, as of the 13th day of March, 1856; the same to be served within forty-eight hours on the attorney for the plaintiffs, and printed for use on the argument.